Guest Commentary: Media misinterprets ruling on health info

Peter MacKoul

Published 7:00 pm, Tuesday, July 11, 2006

Many media sources and supporters of open records who want access to information containing "protected health information" (PHI) that is controlled by public entities are hailing the Appellate Court ruling in the Abbott v. Texas Department of Mental Health and Mental Retardation case as a "victory" for the open records law in Texas, and view the court ruling as saying state laws override the Federal privacy regulations.

While the Appellate Court ruling supported the AG' s position in this case by saying "statistical" information could be released under the public information laws of Texas, the ruling emphasized the fact that HIPAA applies to the state of Texas and provided guidance on how HIPAA and the Public Information Act work together when "protected health information" (PHI), is actually involved in a case.

The Appellate Court made it clear in the Abbott case that no PHI was actually involved.

In fact, the case involved statistical information (or information that does not identify any individual's medical condition or personal identification / information).

There is a huge distinction between statistical information and PHI that can actually identify an individual and that individual's medical condition.

While the Appellate court indicated the Public Information Act and HIPAA can work together, medical information itself is considered confidential by the PIA and thus is not disclosable, even under state laws.

The Appellate decision did not rule that state laws override the HIPAA privacy laws.

Part of the confusion about this subject may be the result of an AG opinion in 2004 after the AG's office conducted an analysis of whether HIPAA applies to the state of Texas.

That analysis concluded most of the state laws were not pre-empted by HIPAA, thus organizations in the state of Texas should follow the state laws over the HIPAA Privacy rule.

Since that AG opinion was released, a Federal District Court has clearly applied HIPAA to a health center in Texas and a criminal case has been prosecuted with an individual awaiting sentencing that may involve a prison sentence under the HIPAA Privacy rule.

The Appellate court actually reaffirmed that the Federal privacy laws do apply to Texas and the AG's office seems to have confirmed that position in its statements to the Appellate Court. The court also clearly stated that HIPAA does not "supersede" the PIA although many major news outlets have inaccurately represented this case as the state PIA superseding or "trumping" the Federal HIPAA regulations.

It appears the mixed messages from state officials as to what laws should be followed have created a degree of confusion and there is a definite need for clarification on the Appellate ruling lest entities in Texas inadvertently violate Federal privacy laws.

The media sources that have misinterpreted the ruling also need to act responsibly and provide accurate information to their audiences.

Peter MacKoul is an attorney and consultant with HIPAA Solutions, LC in Sugar Land. He currently serves on the Health Information Technology Advisory Board for the state of Texas.